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4646 Dakota Street S.E.
Prior Lake, MN 55372-1714
CITY COUNCIL AGENDA REPORT
MEETING DATE:
AGENDA #:
PREPARED BY:
MAY 17, 2010
10D
JERILYN ERICKSON, FINANCE DIRECTOR
AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR
AND CITY MANAGER TO ENTER INTO A STANDARDIZED WATER TOWER
ANTENNAE AGREEMENT WITH CLEAR WIRELESS LLC
DISCUSSION: Introduction
The purpose of this agenda item is to consider entering into a Water Tower
Antennae Agreement with Clear Wireless LLC. Clear Wireless LLC has
requested that they be allowed to install antennae on the Tower Street Water
Tower and associated ground equipment on the property. Originally, they
were interested in executing an agreement for both towers at the same time.
Due to an anticipated delay in the installation of the antennae on the Crest
Avenue Tower, Clear Wireless has requested a delay in executing the second
agreement until later this fall.
HiStOrY
The City currently has the following Antennae Agreements in place:
Site Lessee Contract
Date
4741 Tower Street
Tower Street Water Tower Cingular / AT&T .2006
S rint 2000
T-Mobile 1999
Verizon 1991
5560 Cedarwood Street
Crest Avenue Water Tower Cingular / AT&T 2002
S rint 1997
T-Mobile 2000
Verizon 1997
3600 - 170 Street SE
Willows Park Power Pole T-Mobile 2008
14998 Wilds Parkway
Civil Defense Tower Verizon 2005
Current Circumstances
Clear Wireless LLC would like to place their antennae on the Tower Street
Water Tower in the City of Prior Lake. The City Attorney and Staff updated the
City's Standardized Water Tower Antennae Agreement and provided Clear
Wireless LLC with the executable document.. A copy of the partially executed
Agreement is included with this agenda report.
The Agreements have an initial term from the effective date through December
31, 2010. The initial term of the Agreements will automatically extend for four
(4) additional five (5) year terms subject to provisions in the Agreement.
www. cityofpriorlake. com
F~:1~. ) ,Phone 952.447>9800 ,/ Fax 9~2.4~7:~4.5 r
Site drawings submitted by Clear Wireless LLC for both sites have been
reviewed and approved by KLM Engineering, an engineering firm hired by the
City. The costs associated with the reviews were charged to Clear Wireless
prior to any work being done.
FINANCIAL The Antennae Agreement has an annual fee for 2010 of $22,100.00 which
IMPACT: would be prorated for the initial term of the Agreement. Thereafter, the annual
fee shall increase each January 1 by the previous year's annual fee plus five
percent (5%).
Additional fees will apply for installation of Ground Equipment structures or
Equipment Shelters. These are one-time non-refundable fees for use of the
property.
Clear Wireless LLC will be installing a Ground Equipment structure which
requires a $7,500 one-time non-refundable fee.
The revenues generated from these Antennae Agreements will be recorded in
the General Fund.
Clear Wireless LLC will also be required to obtain the necessary building
permits.
ALTERNATIVES: The following alternatives are available to the City Council:
1. Adopt a Resolution Authorizing the Mayor and City Manager to enter
into a Standardized Water Tower Antennae Agreement with Clear
Wireless LLC.
2. Table this item for a specific reason.
RECOMMENDED Alternative 1.
MOTION:
Revi
Frank Boylq~, C~ty~Manager
ATTACHM~NT~: V 1. Standardized Water Tower Antennae Agreement with Clear Wireless LLC for
// Tower Street Water Tower.
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~,~`` 4646 Dakota Street S.E.
U ; x ~ Prior Lake, MN 55372-1714
SO~~.w.~>'~~ RESOLUTION 10-xxx
A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE THE CITY'S
STANDARDIZED WATER TOWER ANTENNAE AGREEMENT WITH CLEAR WIRELESS LLC FOR
THE TOWER STREET WATER TOWER
Motion By: Second By:
WHEREAS, Various cellular companies require locations for their antennae; and
WHEREAS, The public safety, health and welfare is served when cell phone coverage is uniform
and unbroken; and
WHEREAS, Clear Wireless LLC desires to install antennae on the City's Tower Street Water Tower;
and
WHEREAS, The City Council has adopted a Standardized Water Tower Antennae Agreement; and
WHEREAS, Clear Wireless LLC has executed said Agreement.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The Mayor and City Manager are hereby authorized to execute the Standardized Water Tower
Antennae Agreement on behalf of the City.
PASSED AND ADOPTED THIS 17T" DAY OF MAY, 2010.
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M ser M ser
Erickson Erickson
Hedber Hedber
Keene Keene
Millar Millar
Frank Boyles, City Manager
_ www.cityofpriorlake.com
Phone 952.447.9800 /Fax 952.447.4245
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STANDARD WATER TOWER ANTENNAE AGREEMENT
THIS AGREEMENT is made and entered into this _ day of , 2010,
by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota .municipal
corporation (hereinafter referred to as the "CITY"), and CLEAR WIRELESS LLC, a Nevada
limited liability company (hereinafter referred to as "COMMUNICATION COMPANY"),
(collectively "PARTIES").
RECITALS
A. The CITY is the fee owner of certain land located in Prior Lake, Scott County,
Minnesota legally described on Exhibit A, which Exhibit is attached hereto and incorporated
herein (hereinafter referred to as the "Property") which may be subject to existing easements.
B. Located on the Property is a municipal water tower owned, operated and
maintained by the CITY (hereinafter referred to as the "Water Tower").
C. COMMUNICATION COMPANY .desires to install, operate and maintain a
devise(s) or equipment used for the transmission and reception of radio communication signals in
such frequencies as may be assigned by the Federal Communication Commission (hereinafter
referred to as the "Antennae"), and to provide for the storage of related equipment in either an
"Equipment Shelter" or in "Ground Equipment"
D. CITY desires to minimize the number of towers, Ground Equipment, and
monopoles located within the CITY by making City Water Towers and other suitable City
Structures available to communication companies in order to provide enhanced services to the
residents of the City Prior Lake.
E. The PARTIES desire to enter into this Agreement relating to the use of the CITY
Water Tower for communication purpose.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and for other good, valuable and
fair consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Recitals. The Recitals set forth above and any Exhibits referenced therein are
incorporated and made part of this Agreement as if fully set out herein.
2. Authorization to Use Water Tower Space. The primary purpose of the CITY's
ownership of the Property is to: (a) operate and maintain a municipal water tower so as to
provide water service to residents of Prior Lake; and (b) to provide government-related
communication systems for the City of Prior Lake and other governmental units for
communication and safety purposes. Subject to the terms of this Agreement, the CITY
grants COMMUNICATION COMPANY's non-exclusive use of a certain portion of the
Property, which is legally described on Exhibit A attached hereto and incorporated herein,
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subject to any and all existing easements and restrictions not inconsistent with the rights
granted hereunder for the purposes described in Paragraph 4 of this Agreement, including
the installation, operation, and maintenance of the Antennae and the storage of
equipment. The location on the Water Tower where COMMUNICATION COMPANY
is authorized to install the .Antennae and the location of the "Equipment Shelter" ("Site
Plan") or COMMUNICATION COMPANY'S "Ground Equipment" on the Property is
depicted on Exhibit B attached hereto and incorporated herein.
3. Term. This Agreement provides for an Initial Term and four (4) five (5) year Renewal
Terms.
3.1 Initial Term. The Initial Term of this Agreement shall commence on the date set out. in
the first paragraph of this Agreement, referred to herein. as the "Effective Date," subject
to the COMMUNICATION COMPANY satisfying all of the conditions described in
Exhibit C. The Initial Term shall run. from the Effective Date to December 31St of the
year the Agreement is signed.
3.2 Renewal Terms. There shall be four. (4), five (5) year "Renewal Terms", subject to the
provisions in Paragraph 5, unless COMMUNICATION COMPANY gives CITY written
notice at least sixty (60) days prior to the expiration of the then-existing term, that
COMMUNICATION COMPANY is terminating this Agreement.
3.3 Early Termination Penalty. If COMMUNICATION COMPANY elects to terminate
this Agreement before the natural end of the Renewal Terms, for reasons other than those
set forth in Section 9(A) (a-c) and (e-g), COMMUNICATION COMPANY shall pay
CITY a sum equal to the annual fee for one (1) year. The current year's fee shall be used
to calculate the "Early Termination Penalty." The CITY's water tower has a limited
capacity to accommodate the installation of communication antennae and the sending and
receiving of signals from and to Antennae with interference. The CITY calculates the
anticipated revenue from Water Tower Antennae Agreements into its financial planning.
The CITY will be materially prejudiced if a COMMUNICATION COMPANY terminates
an Agreement early. By entering into 'a twenty (20) year, plus Initial Term, Agreement
with COMMUNICATION COMPANY the CITY is .potentially foregoing the ability to
enter into Agreements with other COMMUNICATION COMPANIES.
4. Fee and Compensation
A. Initial and Renewal Terms. COMMUNICATION COMPANY agrees to pay
CITY an annual Fee as provided for herein. The annual Fee for the Initial Term shall be Twenty
Two Thousand One Hundred and 00/100 Dollars ($22,100.00). Thereafter, the annual Fee shall
increase each January 1, beginning on January 1, 2011, by the amount of the previous year's
annual fee plus five percent (5%). The Fee shall be paid by COMMUNICATION COMPANY
in one payment that must be received by the CITY prior to .January 1St of each year.
B. Initial Term Fee Pro-rated. The Fee for the Initial Term shall be pro-rated from the
date the CITY Council authorizes this Agreement (the" .Effective Date") through December 31St
of that year. The Initial Term Fee shall be paid to CITY in full within ten (10) business days
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from the date the resolution authorizing the Agreement is passed. If the COMMUNICATION
COMPANY does not meet the requirements referenced in Paragraph 5 below within six (6)
months following the Effective Date, the CITY may at its sole discretion, terminate this
Agreement. If terminated, the. CITY shall refund the pro rata share of the Fee less Three
Thousand Dollars ($3000.00) for expenses associated with the drafting and negotiation of this
Agreement.
C. In addition to the annual fee, COMMUNICATION COMPANY agrees to timely
pay it's pro rata share of any taxes or payment in lieu of taxes required as a direct result of this
Agreement. The pro rata share shall be based on the amount of space occupied by the
COMMUNICATION COMPANY on the Property which is taxed compared to the total amount
of space occupied or used by other COMMUNICATION COMPANIES or users, other than the
CITY or another governmental entity.
D. Equipment Shelter and Ground Equipment Fee. Subparagraphs a and b below
require COMMUNICATION COMPANY. to pay a one time fee to the CITY to compensate for
the installation of either "Ground Equipment" or an "Equipment Shelter," which ever the case
may be. This Agreement should be interpreted in a manner that only the provisions applicable to
the type of equipment the COMMUNICATION COMPANY installs ("Equipment Shelter" or
"Ground Equipment") is relevant to .COMMUNICATION COMPANY. For example, if
COMMUNICATION COMPANY installs "Ground Equipment," any provisions in this
Agreement applicable to "Equipment Shelters" shall not apply to COMMUNICATION
COMPANY.
For the purposes of this Agreement COMMUNICATION COMPANY has
represented to CITY that it only requires "Ground Equipment" to support the operation of It's
antennae on the Water Tower. In the event COMMUNICATION COMPANY later determines it
requires an "Equipment Shelter", COMMUNICATION COMPANY, seek the necessary permits
and pay CITY an additional fee of Five thousand ($5,000.00) dollars. The additional fee
represents the difference between the fee for "Ground Equipment" and the fee for an "Equipment
Shelter."
(a) "Ground Equipment" is'any structure positioned on the Property, which is
integral to COMMUNICATION COMPANY'S use of the City's Water
Tower, but that is not an Equipment Shelter. In addition to the Initial and
Renewal Fee(s) and payments provided for herein, COMMUNICATION
COMPANY agrees to pay CITY aone-time non-refundable fee of Seven
Thousand Five Hundred Dollars and no/100 ($7500.00) as compensation
for COMMUNICATION COMPANY's use of the Property to install its
"Ground Equipment. Exhibit D depicts the size, dimensions and location
of the GROUND EQUIPMENT.
(b) Equipment Shelters. In addition to the Initial and Renewal Term Fees,
COMMUNICATION COMPANY shall pay City a one-time non-
refundable fee of Twelve Thousand Five Hundred Dollars ($12,500.00) as
compensation for COMMUNICATION COMPANY's .use of a portion of
the Property for a building ("Equipment Shelter") for the storage of
Equipment. related to the Antennae. Exhibit D depicts the size, location
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and configuration of the "Equipment Shelter" on the Property.
COMMUNICATION COMPANY'S use of the "Equipment Shelter" shall
be exclusive during the Initial or any Renewal Term. The exterior finish
of the "Equipment Shelter" must be brick or a material which simulates
the appearance of brick fascia. The building construction plan shall be
submitted in .accordance with CITY policy and design and zoning criteria
and subject to the review and approval of the City of Prior Lake before
construction, which approval shall not be unreasonably, conditioned,
withheld or delayed. The appearance of the "Equipment Shelter", depicted
in Exhibit D, shall match existing "Equipment Shelter(s)."
COMMUNICATION COMPANY shall provide for and be responsible for
all. utility services used by COMMUNICATION COMPANY.
COMMUNICATION COMPANY shall be responsible for the
maintenance of the "Equipment Shelter."
5. Use.
A. COMMUNICATION COMPANY' S right to use the Property and Water Tower is
expressly made contingent upon its obtaining all the .certificates, permits, zoning and other
approvals that may be required by any federal, state or local authority. This shall include the
Interference Study provided for in Subparagraph 12(D) that shall be conducted at
COMMUNICATION COMPANY'S expense.
B. COMMUNICATIONS COMPANY may use the Property and the Water Tower
solely for the purpose of constructing, installing, removing, replacing, maintaining, and operating
the Antennae and Equipment, subject to such modifications and alterations as may result from
changes or improvements in technology. Prior to COMMUNICATION COMPANY installing,
subsequently modifying, or removing the Antennae and the Equipment it shall provide written
notice to the City, along with copies of the plans and specifications of the work. The City shall
have the right, at its discretion, to approve the manner of installation and the location on the
Water Tower where COMMUNICATION COMPANY installs the Antennae, which approval
shall not be unreasonably withheld or delayed. COMMUNICATION COMPANY shall not
install any. subsequent antennae beyond the number agreed to and represented in Exhibit B
without negotiating a written addendum to this Agreement, which addendum shall include an
increase in the annual rental fee and reimbursement to the CITY for the cost incurred in drafting
and negotiating any addenda.
C. COMMUNICATION COMPANY shall store all Equipment related to the
Antennae in an "Equipment Shelter" or as part of its "Ground Equipment."
D. CITY will not in any way be responsible for the Antennae, the related "Ground
Equipment", the "Equipment Shelter", or any personal property actually placed on the Property
or in the Equipment Shelter or installed on the Water Tower by COMMUNICATION
COMPANY.
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E. The Antennae and the related Equipment shall remain the property of
COMMUNICATION COMPANY, subject to the terms of Paragraphs 8 and 9.
F. The CITY shall provide COMMUNICATION COMPANY with twenty-four (24)
hour, seven (7) days a week, year-around access to the Property and to the Water Tower, subject
to the CITY's right to limit access to the Water Tower in cases of emergency or at times when
the CITY is conducting repairs or maintenance on the Water Tower. The CITY shall use
reasonable efforts to minimize the disruption of COMMUNICATION COMPANY'S access to
the Water Tower, in responding to any such emergencies and performing such maintenance and
repairs. The CITY will be entitled to reimbursement from COMMUNICATION COMPANY if
the CITY incurs any costs associated with providing COMMUNICATION COMPANY access to
Water Tower, Property, Supplemental .Equipment or Equipment Shelter except in those cases
where cost is incidental to City obtaining access for its own purposes unrelated to
COMMUNICATION COMPANY'S use of Antennae, Water Tower, Supplemental Equipment
and Equipment Shelter. Notwithstanding the foregoing, "access" does not require or impose
upon the CITY an affirmative duty to snowplow in order to provide "access" to the Properly,
Equipment Shelter, Supplemental Equipment or Water Tower. The CITY shall not be
responsible for damages or otherwise for interruption in COMMUNICATION COMPANY
services if the interruption is due to an emergency or the performance of maintenance and repairs
on the Water Tower. If COMMUNICATION COMPANY requires access it shall provide CITY
with forty-eight (48) hours notice, unless an emergency exists.
G. COMMUNICATION COMPANY shall take all steps necessary to prevent any
mechanics' or material men's liens from being placed on the Property as a result of COMMUNICATION
COMPANY'S use of the Water Tower, Properly, "Ground Equipment", "Equipment Shelter" or
Antennae, and specifically indemnifies the CITY from such liens.
H. The color of the Antennae and any equipment placed on the Water Tower shall match the
color of the Water Tower.
I. COMMUNICATION COMPANY shall pay all personal and real property taxes
assessed. against the Antennae, "Ground Equipment" and/or "Equipment Shelter." If any such
improvements constructed on the Property should cause part of the Property to be taxed for real
estate purposes, it shall be the liability of COMMUNICATION COMPANY to pay such property
taxes, subject to the provisions in Subparagraph 4(C).
J. Any access easements rented to COMMUNICATION COMPANY shall terminate
upon termination of this Water Tower Antennae Agreement and COMMUNICATION
COMPANY agrees to execute any and all documents necessary to remove the easement from the
Property.
6. Maintenance of Antennae; Modification. COMMUNICATION COMPANY shall
maintain the Antennae, "Ground Equipment" and "Equipment Shelter" in good condition at all
times, at its sole cost and expense. COMMUNICATION COMPANY shall conduct all repair,
replacement and maintenance operations in accordance with applicable OSHA regulations or
such other occupational and safety regulations pertaining to such operations. Upon the written
request of the CITY, but no more than once every five (5) years from the Effective Date of this
Agreement, or upon the material removal, modification or replacement of COMMUNICATION.
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COMPANY'S antennae and/or .equipment, COMMUNICATION COMPANY shall have the
Antennae and Water Tower inspected by a Registered Civil Engineer and provide the City with a
copy of the inspection report. If COMMUNICATONS :COMPANY fails to do so, and such
failure creates a risk of damage or injury to persons or property (as determined in the reasonable
discretion of the CITY), the CITY may take such steps as it determines to be necessary to protect
persons or property; including removal of the Antennae and the equipment.
COMMUNICATION COMPANY shall reimburse the CITY for any costs incurred in connection
with assuring compliance with the provisions of this Paragraph; including any costs of restoring
the Water Tower and the Property to their original condition. If COMMUNICATION
COMPANY fails to pay the CITY for such costs within thirty (30) days of a demand by the
CITY for payment, the CITY at its election may terminate this Agreement and retain the total
payment of the current year Fee. These remedies are nonexclusive and the CITY expressly
reserves its rights to pursue any available legal or equitable remedies.
7. Utilities. COMMUNICATION COMPANY shall separately meter and pay all electric
and other utility services that are associated with the use of the Property, the Water Tower, the
"Ground Equipment" and the "Equipment Shelter." The CITY agrees to cooperate with
COMMUNICATION COMPANY in its efforts to connect the Antennae and Equipment to
existing utility service at COMMUNICATION COMPANY'S expense and to grant such
easements as may be reasonably necessary to enable utility companies to provide service to the
Antennae, "Ground Equipment" and "Equipment Shelter." The CITY makes no representation
or warranty regarding the availability of electric or other utility service to the Property, Water
Tower, "Ground Equipment" or the "Equipment Shelter." COMMUNICATION COMPANY
shall have the right to install utilities, at COMMUNICATION COMPANY's expense, and to
improve the present utilities on the Property including, but not limited to, the installation of
emergency power generators within an "Equipment Shelter." Companies that are using "Ground
Equipment" may transport an emergency generator to the Properly. The emergency generator
must be removed once power is restored to the Property. The CITY shall- not be liable, and
COMMUNICATION COMPANY waives any and all claims against the CITY, for any
interruption of electrical or other utility services to the Property, Antennae, "Ground Equipment"
or "Equipment Shelter."
8. Removal of Antennae and Equipment.
A. COMMUNICATION COMPANY. shall remove the Antennae and all personal
and real property and trade fixtures at its own cost and expense upon the expiration of the term of
this Agreement, any earlier termination of this Agreement as provided herein, or any Renewal
Term. COMMUNICATION COMPANY shall, at its sole cost and expense, return the Water
Tower and the Property to the condition it was in prior to the commencement of this Agreement,
normal wear and tear excepted and loss by casualty or other causes beyond COMMUNICATION
COMPANY'S control. Notwithstanding the foregoing, COMMUNICATION COMPANY will
not be responsible for the replacement of any trees, shrubs or other vegetation, nor will
COMMUNICATION COMPANY be required to remove any underground utilities from the
Property. In the event COMMUNICATION COMPANY fails to remove any component,
antennae or appurtenant equipment from the Water Tower or restore the Water Tower and
Property to their original condition, within ninety (90) days of the termination of this Agreement,
the CITY shall have the right to remove COMMUNICATION COMPANY'S Antennae,
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equipment, "Equipment Shelter" and "Ground Equipment" from the CITY's Property and make
restorations thereto at the sole cost and expense of the COMMUNICATION COMPANY. If
COMMUNICATION COMPANY fails to reclaim its property within ninety (90) days from the
date the CITY provides COMMUNICATION COMPANY with notice to remove its property,
the property will be removed by the CITY and without further notice be deemed abandoned. No
property will be released by the CITY to COMMUNICATION COMPANY until
COMMUNICATION COMPANY has reimbursed the CITY for all expenses related to removing
the property and returning the Property and the Water Tower to their original condition.
B. Upon the termination of this Agreement, without regard to the cause for such
termination, all right, title and interest in and to the "Equipment Shelter" or "Ground Equipment"
shall be vested with the CITY. Upon such termination, and at the election of the CITY the
"Equipment Shelter" shall either remain upon the Property in the location depicted on Exhibit D
or at the sole expense of the COMMUNICATION COMPANY be removed and the Property
returned to its original condition. The COMMUNICATION COMPANY shall remove any
"Ground Equipment" it installed on the Property in lieu of an "Equipment Shelter."
C. Notwithstanding the paragraphs 7A and 7B, COMMUNICATIONS COMPANY
will not be responsible for the replacement of any trees, shrubs or other vegetation..
9. Termination.
A. Except as otherwise provided herein, this Agreement may be terminated by either
parry only as follows:
(a) by either party after providing written notice to the other party that a
default of a covenant or term of the Agreement has occurred and the
defaulting party has failed to cure the default within sixty (60) days from
the date the written notice was mailed or personally delivered to the other
party. The right to terminate the Agreement as provided for herein is not
intended to be an exclusive remedy; and the parties reserve the right to
pursue other remedies available to them in law or equity;
(b) by COMMUNICATION COMPANY for cause, upon sixty (60) days
written notice, if it is unable to obtain or maintain any license, permit, or
other governmental approval necessary for the construction and/or
operation or use of the Property and the Water Tower as a transmission
facility, Ground Equipment and Equipment Shelter;
(c) by COMMUNICATION COMPANY for cause if the Property is or
becomes unacceptable for technological reasons under
COMMUNICATION COMPANY'S design or engineering specifications
for its antennae or related Equipment;
(d) by .the CITY if COMMUNICATION COMPANY fails to tender the
annual rental payment within thirty (30) days after receipt of written notice
.from the CITY of such failure to pay, however, the COMMUNICATION
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Company shall not escape the penalty for early termination set out in
Section 3.3, by failing to pay the annual fee during any pending term;
(e) by the CITY if it reasonably determines, after consultation with a licensed
structural engineer that the Water Tower is structurally unsound for use as
a Water Tower, for any reason including but not limited to considerations
related to the age of the structure, damage to or destruction of all or part of
the Water Tower or the Property from any source, or factors relating to the
condition of the Property;
(f) by the CITY, as a matter of right, upon six (6) months prior written notice
to COMMUNICATION COMPANY, if its City Council decides, for any
reason, to discontinue use of the Water Tower for all purposes, in which
event COMMUNICATION COMPANY shall not be entitled to
compensation in any form for any reason as a result of the City's
exercising its rights under this Subparagraph; or
(g) by COMMUNICATION COMPANY if CITY causes electrical utility
services to be interrupted for a period of more than thirty (30) days.
B. If CITY terminates this Agreement other than as of right as provided in this
Agreement, or CITY causes interruption of the business of
COMMUNICATION COMPANY or for any other CITY breach of this
Agreement, the CITY's liability for damages to COMMUNICATION
COMPANY shall be limited to the actual and direct costs of Equipment removal
or repair and shall specifically exclude any recovery for value of the business of
COMMUNICATION COMPANY as a going concern, future expectation of
profits, loss of business or profit or related damages to COMMUNICATION
COMPANY. The CITY's liability for damages is further limited by the liability
protections set out in Minnesota Statute Chapter 466, as it may be amended
from time to time.
10. Non-Exclusive Use. Upon paying the Fee as required herein, COMMUNICATION
COMPANY shall have the right to the non-exclusive use of the Water Tower and Property as
permitted in this Agreement. The City shall not be responsible for any interference which
impairs the quality of the communication services being rendered by COMMUNICATION
COMPANY from the Antennae.
11. Interference Caused by Antennae. COMMUNICATION COMPANY agrees that the
following priorities of use shall apply in descending order in the event communication
interference or other conflict results while this Agreement is in effect, and COMMUNICATION
COMPANY' S use shall. be subordinate to higher priority users.
User Priority:
i. The CITY;
ii. Public Safety Agencies; including law enforcement, fire and ambulance
services, that are not part of the CITY; and
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iii. Other governmental agencies where use is not related to public safety
12. Interference with Antennae Operations.
A. Temporary Interruptions of Service. If the -CITY determines that continued
operation of the Antennae would cause or contribute to an immediate threat to public health
and/or safety (except for any issues associated with human exposure to radio frequency
omissions, which is regulated by the federal government), the CITY may order
COMMUNICATION COMPANY to discontinue its operation. COMMUNICATION
COMPANY shall immediately comply with such an order. Service shall be discontinued only
for the period that the immediate threat exists. If the CITY does not give prior notice to
COMMUNICATION COMPANY, the CITY shall notify COMMUNICATION COMPANY as
soon as possible after its action and give its reason for taking the action. The CITY shall not be
liable to COMMUNICATION COMPANY or any other party for any interruption in
COMMUNICATION COMPANY's service or interference with COMMUNICATION
COMPANY'S operation of its Antennae, Equipment, Ground Equipment or Equipment Shelter,
except as may be caused by the negligence or willful misconduct of the CITY, its employees or
agents. In any event, the CITY'S liability shall not extend beyond the' obligation to repair the
cause of the interruption or interference. If the discontinuance extends for a period greater than
three (3) business days, COMMUNICATION COMPANY'S sole remedy shall be the right to
terminate this Agreement within its sole discretion.
B. With Structure. COMMUNICATION COMPANY shall not interfere with CITY's
use of the Water Tower or Property and agrees to cease all such actions which unreasonably and
materially interfere with CITY'S use thereof no later than three (3) business days after receipt of
written notice of the interference from CITY.
C. With Higher Priority Users. If COMMUNICATION COMPANY's Equipment
causes impermissible interference with the parties identified in Paragraph 10 above or with
preexisting tenants, COMMUNICATION COMPANY shall take all measures necessary to
correct and eliminate the interference. If the interference cannot be eliminated within 48 hours
after receiving CITY'S written notice of the interference, COMMUNICATION COMPANY shall
immediately cease operating its Antennae and shall not reactivate operation, except intermittent
operation for the purpose of testing, until the interference has been eliminated. If the interference
cannot be eliminated within thirty (30) days after COMMUNICATIONS COMPANY received
CITY'S written notice, CITY may at its option terminate this Agreement immediately.
D. Interference Study -New Occupants. Upon written notice by CITY that it has a
bona fide request from any other party to use or occupy an area including or in close proximity to
the Water Tower and Property, COMMUNICATION COMPANY agrees to provide CITY,
within twenty (20) days, the radio frequencies currently in operation or to be operated in the
future of each transmitter and receiver installed and operational on the Water Tower and Property
at the time of such request. CITY may require a new commercial applicant to retain an
independent registered professional engineer, acceptable to the CITY, to perform a necessary
interference study to determine if the new applicant's frequencies will cause harmful radio
interference to COMMUNICATION COMPANY. CITY shall require the new applicant to pay
for such interference studies. CITY agrees that it will not enter into an Agreement with a future
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commercial user to occupy the Water Tower and Property, if such party's use is reasonably
anticipated to interfere with COMMUNICATION COMPANY's operation of its Antennae or
Equipment.
E. If there is interference with COMMUNICATION COMPANY'S operations then
CITY will make a good faith effort to assist COMMUNICATION COMPANY to determine the
cause of the interference and a possible resolution.
13. Future Develoument. COMMUNICATION COMPANY understands and acknowledges
that the City may utilize the Property for public use at some future date, and that the design and
manner of such use shall be at the sole discretion of the CITY. In the event that CITY undertakes
such use, then the CITY and COMMUNICATION COMPANY agree to cooperate with one
another as necessary to facilitate both parties use of the Property.
14. Indemnity.
A. By COMMUNICATION COMPANY. COMMUNICATION COMPANY agrees
to defend, indemnify and hold harmless .CITY and its elected officials, officers, employees,
attorneys, agents, and representatives, from and against any and all claims, costs, losses,
expenses, demands, actions or causes of action, including reasonable attorneys' fees and other
costs and expenses of litigation, which may be asserted against or incurred by the CITY or for
which the CITY may be liable in the performance of this Agreement, except those which arise
solely from the negligence, willful misconduct, or other fault of the CITY. COMMUNICATION
COMPANY shall defend all claims arising out of the installation, operation, use, maintenance,
repair, removal, or presence of COMMUNICATION COMPANY'S Antennae, Equipment,
Appurtenant Equipment, Shelter, Supplemental ~ Equipment and any related facilities on the
Property.
B. CITY agrees to defend, indemnify and hold harmless COMMUNICATIONS
COMPANY from and against any and all claims, costs, losses, expenses, demands, actions or
causes of action, including reasonable attorneys' -fees and other costs and expenses of litigation
caused by the City, which may be asserted against or incurred by the COMMUNICATIONS
COMPANY or for which the COMMUNICATIONS COMPANY may be liable in the
performance of this Agreement, .except those which arise solely from the negligence, willful
misconduct, or other fault of the COMMUNICATIONS COMPANY.
C. Hazardous Materials. .CITY represents. that CITY has no knowledge of any
substance, chemical, or waste on the Property that is identified as Hazardous Materials, toxic or
dangerous in any applicable federal, state or local law or regulation. Without limiting the scope
of Subparagraph 14(A) above CITY and COMMUNICATION COMPANY agree to hold
harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at
the sole cost and expense of the indemnifying party for, payment of penalties, sanctions,
forfeitures, losses; costs or damages, and for responding to any action, notice, claim, order,
summons, citation, directive,. litigation, investigation or proceeding which is related to (i) the
indemnifying party's failure to comply with any environmental or industrial hygiene law,
including without limitation any regulations, guidelines, standards or policies of any
governmental authorities regulating or imposing standards of liability or standards of conduct
10
with regard to any environmental or industrial hygiene conditions or matters as may now or
hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise out of
or are in any way related to the condition of the Water Tower and/or Property and activities
conducted by the parry thereon, unless the environmental conditions are caused by the other
party.
For purposes of this Agreement "Hazardous. Materials" shall be interpreted broadly and
specifically includes, without limitation, asbestos, fuel batteries or any hazardous substance,
waste, or materials as defined in any federal, state, or local environmental or .safety law or
regulations including, but not limited to, CERCLA.
D. COMMUNICATION COMPANY'S Warranty Regarding Hazardous Materials or
Waste. COMMUNICATION COMPANY represents and warrants that its use of the Water
Tower, Property, Supplemental Equipment and. Equipment Shelter will not generate any
hazardous materials, substances or waste and that COMMUNICATION COMPANY will not
store, dispose of any hazardous materials, waste or substances on the Property, nor will
COMMUNICATION COMPANY transport to or over the Water Tower or Property, in violation
of any applicable law or regulations pertaining to Hazardous Materials, unless
COMMUNICATION COMPANY specifically informs the CITY thereof in writing forty-eight
(48) hours prior to such storage, disposal or transport, or otherwise as soon as
COMMUNICATION COMPANY becomes aware.. of the existence of any Hazardous Materials
on the Property in violation of any applicable law or regulation. The obligations of this
Paragraph 14 shall survive the expiration or other termination of this Agreement.
15. Damage to Water Tower or to the Property. COMMUNICATION COMPANY'S
installation, operation, maintenance, modification, and removal of the Antennae and Equipment
shall not damage or interfere in any way with the Property or the Water Tower operations or
related repair and maintenance activities. If the activities of COMMUNICATION COMPANY,
or those of its agents, representatives, employees, contractors, or subcontractors, cause such
damage or interference, COMMUNICATION COMPANY will commence and diligently
proceed to cure the damage or interference within fifteen (15) days after receipt of written notice.
If COMMUNICATION COMPANY fails to cure such damage or interference the CITY, without
further notice, may take such steps as it deems necessary to repair the damage or remedy the
interference, at the sole cost and expense of COMMUNICATION COMPANY. In the event of
an emergency situation, where it is crucial for the repairs to be corrected as quickly as possible,
the CITY, without notice to the COMMUNICATION COMPANY, may begin corrective action.
Once COMMUNICATION COMPANY is capable of assuming responsibility for completing the
repairs to the water tower, city may hand over responsibility for completing the repairs to the
COMMUNICATION COMPANY. The CITY shall provide COMMUNICATION COMPANY
with an invoice for any .fees or expenses incurred to address the emergency situation. If
COMMUNICATION COMPANY fails to reimburse CITY for the expenses incurred the CITY
may elect to (1) require COMMUNICATION COMPANY to provide CITY WITH AN
Irrevocable Letter of Credit, in an amount determined by the CITY Engineer as a condition of
CITY allowing COMMUNICATION COMPANY'S equipment to remain on CITY property;
(2) increase COMMUNICATION COMPANY'S annual fee by an addition five (5) percent per
year; (3) terminate this Agreement or (4) take any other action available to the CITY in law or
11
equity to recover the amount the CITY expended. The election of one remedy does not waive the
CITY's right to pursue other remedies available to it.
16. Casual If any portion of the Property, Water Tower or Antennae is damaged by any
casualty and such damage materially and adversely affects COMMUNICATION COMPANY's
use of the Water Tower or Property, COMMUNICATION COMPANY may give thirty (30)
days' notice of its intention to terminate this Agreement. Such notice must be given within
fifteen (15) days of the casualty. If the Agreement is terminated under the provisions of this
Paragraph, a pro rata portion of the annual rental shall be refunded to COMMUNICATIONS
COMPANY for any portion of the year after the termination of this Agreement.
17. Quiet Enioyment. COMMUNICATION COMPANY, upon paying the Fee(s), shall
peaceably and quietly have, hold and enjoy the Property and Water Tower. If, as of the date of
execution of this Agreement or hereafter, there is any mortgage, or other encumbrance affecting
the CITY's Property or Water Tower, the CITY agrees to obtain from the holder of such
encumbrance an Agreement that COMMUNICATION COMPANY shall not be disturbed in its
possession, use and enjoyment of the Property and Water Tower. The CITY shall not cause or
permit any use of the Property which interferes with or impairs the quality of the communication
services being rendered by COMMUNICATION COMPANY from the Property.
18. Insurance.
A. As long as this Agreement is in effect, COMMUNICATION COMPANY shall
maintain a general liability insurance policy that provides coverage for the Property and the
Water Tower from any damage to property or injuries. to persons. Said insurance policy shall
provide coverage on an occurrence basis in an amount no less than Two Million Dollars
($2,000,000), and shall include contractual liability coverage to provide coverage for the
indemnification provision in Paragraph 14 of this Agreement. Said insurance policy shall list the
City as an additional insured party. Said policy shall contain a clause that provides that the
insurer will not cancel, non-renew, or materially change the policy without first giving the City
sixty (60) days prior written notice. COMMUNICATION COMPANY shall provide the CITY
with a Certificate of Insurance for said policy naming the CITY as an additional insured. The
insurance shall prove that it may not be cancelled without providing CITY with sixty (60) days
written notice. Each year when COMMUNICATION COMPANY receives a renewal notice for
the insurance it shall provide the CITY with a ~9py prior to the end of the preceding year's
coverage. COMMUNICATION COMPANY shall also maintain fire and extended coverage
insurance insuring COMMUNICATION COMPANY and CITY's personal property for its full
insurable value (subject to reasonable deductibles).
B. Notwithstanding anything in this Agreement to the contrary, each party releases
the other party from all liability, whether for negligence or otherwise, in connection with a loss
covered by any policies which the releasing party carries with respect to the Property, including
the Antennae, Ground Equipment and Equipment Shelter, but only to the extent that such loss is
covered under such insurance policy(s). Any policy required to be obtained pursuant to this
Paragraph 18 shall contain a Waiver of Subrogation in favor of the other party to this Agreement.
12
C. COMMUNICATIONS COMPANY shall annually provide CITY with proof of
workers' compensation insurance covering all of COMMUNICATION COIVIPANY's employees
and agents who access the Property.
19. Condition of Property. COMMUNICATION COMPANY acknowledges and agrees that
the CITY makes no representations or warranties regarding the suitability of the Property or the
Water Tower for COMMUNICATION COMPANY's intended use under this Agreement. CITY
represents that the Water Tower and Property are in compliance with all building and other
life/safety codes.
20. Condemnation. In the event the whole of the Property is taken by eminent domain, this
Agreement shall terminate as of the date title to the Property vests in the condemning authority.
In the event a portion of the Property is taken by eminent domain, either party shall have the right
to terminate this Agreement as of said date of title transfer, by giving thirty (30) days' written
notice to the other party. In the event of any taking under the power of eminent domain,
COMMUNICATION COMPANY shall not be entitled to any portion of the award paid for the
taking and the CITY shall receive full amount of such award. COMMUNICATION COMPANY
hereby expressly waives any right or claim to any portion thereof. Although all damages,
whether awarded as compensation for diminution in value of the leasehold or to the fee of the
Property, shall belong to City, COMMUNICATION COMPANY shall have the right to claim
and recover from the condemning authority, .but not from CITY, such compensation as may be
separately awarded or recoverable by COMMUNICATION COMPANY on account of any and
all damage to COMMUNICATION COMPANY'S .business and any costs or expenses incurred
by COMMUNICATION COMPANY in moving/removing its Antennae, Equipment or personal
property. Sale of all or part of Water Tower or Property to a purchaser with power of eminent
domain in the face of the exercise of the power shall be treated as a taking by condemnation.
21. Waiver. Except as otherwise provided in this Agreement, the rights and remedies of the
parties to this Agreement, whether provided by law or by this Agreement shall be cumulative,
and the exercise by either party of any one or more of such remedies shall not preclude the
exercise by it, at the same or different times, of any such remedies for the same default or breach
of any of its remedies for any other default or breach or of any of its remedies for any other
default or breach by the other party. No waiver made by either such party with respect to the
performance, or manner of time thereof, or any obligation under this Agreement shall be
considered a waiver of any rights of the parry making the waiver with respect to the particular
obligation of the other party or condition to its own obligation beyond those expressly waived in
writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the
party making the waiver of any other obligation of the other party. Delay by a party hereto in
instituting or prosecuting any cause of action or claim hereunder shall not be deemed a waiver of
any rights hereunder.
22. Miscellaneous.
A. Whole Agreement; Modification. This Agreement contains all of the terms and
conditions relating to the rights granted herein, and replaces any oral agreements or other
negotiations between the parties relating to the Agreement. No modifications to this Agreement
shall be valid unless and until they have been placed in writing and signed by both parties hereto.
13
B. Severability. If any provision of this Agreement is found to be unenforceable or
invalid by a court of competent jurisdiction, such unenforceability or invalidity shall not affect
the remaining provisions of this Agreement, which shall continue in full force and effect as if the
offending provision never existed.
C. Authority. Each party represents and warrants that it has full authority to enter
into and to sign this Agreement.
D. Counterparts. The parties may sign this Agreement in counterparts..
E. Binding Effect. The terms, conditions, representation and covenants of this
Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of
the CITY and COMMUNICATION COMPANY.
F. Assi~mnent and Dele atg ion.
(a) By COMMUNICATION COMPANY. Except for COMMUNICATION
COMPANY'S affiliates or subsidiaries, COMMUNICATION COMPANY
may not .assign or pledge its rights or delegate its duties under this
Agreement without the CITY'S prior written consent, which consent the
CITY may not unreasonably withhold. For purposes of this Subparagraph,
an "affiliate" means an entity that controls, is controlled by, or is under
common control with COMMUNICATION COMPANY. Upon
acceptance by the CITY of such assignment, transfer or sale,
COMMUNICATION COMPANY will be relieved of all future
performance, liabilities and obligations under this Agreement.
(b) By the CITY. The CITY may freely assign its rights and delegate its
duties under this Agreement to a joint powers organization.
G. Notices. Notices shall be in writing and personally delivered, sent by United
States Mail, postage prepaid, certified or registered with return receipt requested or by any
nationally recognized overnight courier service to the following:
If to City:. CITY of PRIOR LAKE
4646 Dakota Street SE
Prior Lake, MN 55372
ATTN: City Manager
If to Communication Co: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
ATTN: Site Leasing
14
With a Copy to: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
ATTN: Legal Department
H. Estoppel Certificate. Each party agrees to furnish to the other, within ten (10)
days after request, such truthful estoppel information as the other may reasonably request.
I. Governing, Law. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
J. Broker. If either party is represented by a real. estate broker in this transaction,
that party shall be fully responsible for any fee due such broker, and shall hold the other party
harmless from any claims for commission by such broker.
K. Memorandum of Agreement. CITY agrees to cooperate with
COMMUNICATION COMPANY in executing reasonable documents (including a
Memorandum of Lease) necessary. to protect COMMUNICATION COMPANY's rights
hereunder or COMMUNICATION COMPANY'S use of the Water Tower, Property, and
Supplemental Equipment or Equipment Shelter.
L. Headings. Headings at the beginning of paragraphs herein are for convenience of
reference, shall not be considered part of this Agreement and shall not influence its construction.
15
IN WITNESS HEREOF, the parties have executed this Agreement as of the date first above
written.
For Form and Execution
CITY OFPRIOR LAKE
By Suesan Lea Pace
It's City Attorney
~~~~ ~!~
by Mike Myser
Its City Mayor
By Frank Boyles,
It's City Manager
CLEAR WIRELESS, LLC
By:
Its:
~~
16
STATE OF MINNESOTA)
ss.
COUNTY OF SCOTT
The foregoing instrument was acknowledged before me this day of ,
2010, by Mike Myser and Frank Boyles, the Mayor and City Manager of the City of Prior Lake,
Minnesota, a municipal corporation, on behalf of the City, and pursuant to authority granted by
its City Council.
STATE OF~ 6 ~ ~, ~7 ~ )
)ss.
COUNTY OF C~ 1
Notary Public
The foregoing i strument was acknowledged before me this r ~-- day of ~ ,
2010, by ~ and ,
The and of `~.Pl~~..
a corporation, on behalf of the corporation.
MICHELLE FOX
~`~'' OFFICIAL SEAT.
' ~ Notary Public, State of Illinois
,,, M;~ My Commission Expires
F, October 14, 2013
~.~, ,
Notary Public
DRAFTED BY:
HALLELAND, LEWIS, NILAN, SIPKINS & JOHNSON
600 Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402-4501
17
EXHIBIT A
To
WATER TOWER ANTENNAE AGREEMENT
(Legal Description)
Pursuant to that certain Water Tower Antennae Agreement dated ,between the
City of Prior Lake as Lessor and Clear Wireless LLC as Lessee, Lessee is leasing from Lessor a
certain portion of the real property owned by the Lessor (the "Property"), which is legally
described as follows:
That part of the East Half the Southeast Quarter of Section 2, Township 114, Range 22, Scott
County, Minnesota described as follows: Beginning at a point on the East line of said West Half
of the Southeast Quarter distant 440 feet Northerly of the Southeast corner thereof; thence
Westerly parallel to the South line of said West Half of the Southeast Quarter a distance of 180
feet; thence Northerly parallel to said East line a distance of 240 feet; thence Easterly parallel to
said South line a distance of 180 feet to said East line of the West Half of the Southeast Quarter;
thence Southerly along said East line to the point of beginning.
And commonly known as 4741 Tower Street SE, Prior Lake, MN 55372.
18
EXHIBIT B
To
WATER TOWER ANTENNAE AGREEMENT
(Site Plan)
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20
EXHIBIT C
To
WATER TOWER ANTENNAE AGREEMENT
(Conditions Precedent)
All permits from all local or federal land use jurisdictions for the intended use.
2. All local airspace authorities and FAA determination of no hazard to airspace.
3. FCC authorization to utilize this location for the intended use.
4. COMMUNICATION COMPANY's technical reports must establish to its exclusive
satisfaction that the property is capable of being suitably engineered to accomplish
COMMUNICATION COMPANY'S intended use of the Property.
21
EXHIBIT D
To
WATER TOWER ANTENNAE AGREEMENT
(Equipment Shelter and/or Ground Equipment)
Quantity: 1
Description: 54"x45"x27" H-frame mounted cabinet (as per drawings)
Structure: N/A
22